Central Administrative Tribunal - Kolkata
Ranglal Prasad vs Eastern Railway on 6 April, 2021
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1 O.A. 350/1123/2017
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CENTRAL ADMINISTRATIVE TRIBUNAL 3K
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KOLKATA BENCH
?/ O.A. 350/1123/2017 Date of Order: g ■ L, ■ Vl
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Coram: Hon'ble Ms . Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
Ranglal Prasad, S/o late Motilal,
aged about....years
Ex Safaiwala, T/No.31G, (Removed from service)
Under Sr.Divisional Electrical Engineer/EMU,
Eastern Railway, Howrah, at present residing
at C/o Rina Devi, 273/A, G.T.Road,
Paramhasa Apartment, Flat No.2, Ground Floor,
Belur, Howrah - 711202.
Substituted by Ramanti Devi, widow of
Ranglal Prasad, aged about 43 years.
By Profession House wife, residing at 77,
Jeninsa Road, Liluah-19, Bally, Howrah-711204.
.Applicant
fVersus-
1. Union of India,
Through General Manager,
Eastern Railway,
Fairly Place, Kolkata -700001.
2. The Divisional Railway Manager,
Eastern Railway,
Howrah.
3. Sr. Divisional Personnel Officer,
Eastern Railway,
Howrah.
4. Sr, Divisional Electrical Engineer (EMU),
Eastern Railway,
Howrah.
5. Divisional Electrical Engineer (EMU)/CS,
Eastern Railway,
HOwrah.
6. Asstt. Electrical Engineer (EMU),
Eastern Railway,
! Howrah.
i 7. Asstt. Electrical Engineer/TRS/CS,
Eastern Railway,
Howrah.
Respondents
For the Applicant(s): Mr. C.Sinha, Counsel
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/ O.A. 350/1123/2017
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For the Respondent(s): None
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ORDER
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Bidisha Baneriee, Member (J):
Ld. Counsel for the applicant was heard.
2. The applicant in this O.A has sought for the following reliefs:
"a) To set aside and quash impugned Charge Memorandum No. Tf/C/17/26 dated 24.03.2014 issued by Asstt. Electrical Engineer/EMU, Eastern Railway, Howrah.
b) To set aside and quash impugned Enquiry Report dated 06.08.2014 served under covering letter dated 27.08.2014.
c) To set aside and quash impugned Punishment Order being letter No. TF/E/17/26 (Major) dated 22.09.2014 issued by AEE/TRS/CS/HWH and speaking order dated 22.09.2014 issued by AEE/TRS/CS/HWH.
d) To set aside and quash impugned order passed by the Appellate Authority being No. E/Appeaf/189/2014 dated 29.01.2015.
e) To set aside and quash impugned order passed by the Reviewing Authority being No. E/Appeal/80/2015 dated 21.09.2015 issued by Sr. Divisional Electrical Engineer, EMU, Eastern Railway, Howrah.
f) To direct the respondents to reinstate your applicant in service in his formal port of Safaiwala w.e.f. 22.09.2014 with full pay and allowances together with all consequential benefits.
g) Any other order or order(s)..................... "
3. The brief facts that emerged out of pleadings are as under:
The applicant Shri Ranglal Prasad was working as Safaiwala, T/No. 310, and was chargesheeted with SF-5 dated 24.03.2014 for unauthorized absence. The applicant received the memorandum of charges on 27.03.2014 and submitted his reply on 07.04.2014. The inquiry culminated into a penalty of removal from service with 50% of permissible pension, gratuity and other allowances as admissible to the applicant. The said penalty was upheld by the Appellate Authority vide its order dated 29.01.2015 and also by the Revisiona! Authority 3 O.A.350/1123/2017 vide its order dated 21.09.2015. Assailing the orders, the present O.A. has been W/ rf ■ filed. The applicant has alleged some procedural flaws.
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4. Per contra, the respondents have alleged that the applicant was a habitual absentee and have been absenting unauthorizedly. That, he was unauthorizedly absent from duty in various spells during 2010-2014. Thus, he violated Rule 3(ii) and 3(iii) of the Railway Services (Conduct) Rules, 1966. That, he never fulfilled his earlier commitment of not absenting in future. Moreover, in his representation against the Enquiry Officer's report, he had stated that he and his wife were extremely ill and were under observation of a medical practitioner, he neither mentioned about his illness, nor the name and address of medical practitioner or any documentary Evidence like doctor's prescription, pathological test reports !.
etc. That, from earlier SF-11 cases, it was proved that the applicant was habitual in keeping himself unauthorizedly absent in various spells. That, the Disciplinary Authority after considering the facts of the case, the enquiry report and the representation of the applicant was pleased to remove him from service with immediate effect with 50% of permissible pension, gratuity and other allowances, as admissible to him. That, the Appellate Authority and Revisional Authority were also not satisfied with the reason cited by the applicant for his unauthorized absence for long spells. The Appellate Authority and Revisional Authority after considering materials on record upheld the order passed by Disciplinary Authority and that their orders are justified. Further that, the Enquiry Officer was appointed in terms'of letter dated 07.04.2014, therefore, the "question does not arise that prior to official appointment of EO, the EO had informed the charged officer on 17.04.2014 regarding the first sitting of DA enquiry". On the allegation of I * -V? '■ "$ • 4 O.A.350/1123/2017 ./ overlapping of period as per SF-11 with the period of SF-5, the respondents have
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- y averred that "question of twice punishment on same offence also does not arise ' '■/ as the DA only jproved that the applicant is habitual in keeping himself unauthorized absent in duty in various spells and he never fulfilled his commitment of performing duty".
The respondents cited the decision of Hon'ble Madras High Court in the case of B.GovindaswamyVs Inspector General of Police reported in 2009(5) CTC 160 where it has been observed that "Habitual absenteeism is a gross violation of discipline" and it has been further held that:
''Even in the absence of any statutory rule, still it is open to the disciplinary authority to take into consideration the past record of service for inflicting the penalty, which only adds weightage to his decision. If the charge entails a major penalty independently, even without reference to the oast record, then the disciplinary authority c(^n always impose such penalty, commensurate with the misconduct for which the subsequent disciplinary proceedings are taken. When tile right of the delinquent to make his further representation on the penalty has been taken away by the Constitutional amendment, even if \ the disciplinary authority has taken into consideration the past record of the delinquent, that would not vitiate either the disciplinary proceedings or the penalty imposed on him and there is no violation of principles of natural justice."
The respondents have been categorical in denying the allegation of the applicant that the Disciplinary Authority took into account any extraneous matter which was not a part of the impugned charge memorandum dated 24.03.2014 and asserted that "the question of violation of Article 20(2) of the Constitution does not arise in this case as the disciplinary authority has referred the past conduct only to enlighten that the applicant was always habitual in keeping himself unauthorized absent in duty".
They have cited the decision of the Hon'ble Apex Court in Chairman & I V
5 OA350/1123/2017 Managing Director, V.S.P. & Ors Vs. Gopa Raju Sri Prabhakara Hari Babu reported in 2008(5) SCC 569 where Hon'ble Court observed that "once it is found r r that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the % I doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved".
5. The records were perused, and the following discerned :
(i) The charge inducted vide charge sheet (SF-5) dated 24.03.2014 (Annexure A-l) was:
"Article-1 During period from 08/12/2013 to till date up to 28/02/2014 you were unauthorizedly absent from duty and it is found from office record that you are most habituated infrequent u/a absent xxxxx 2011-185 days absent 2012- 80 days absent 2013- 209 days absent 2014- 50 days absent upto 28.2.2014. So you have violated the Riy. Service Conduct Rules, 3(ii} and (Hi) of 1968".
The applicant was chargesheeted not for his absence from 08.12.2013 to 24.02.2014 (a little over 2 months) but for his past misconduct of unauthorised absence.
(ii) -Applicant's reply dated 07.04.2014 (Annexure A-2) whereby he justified his absence in the following words:
"Respected Sir, I, Sri Ranglal Prasad, Degn.Saf, T/No-310, have received the memorandum and noticed the charges against me.
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6 O.A.350/1123/2017 • ri' V | Sir, I was seriously ill in the period from 07-12-13 to 20-2-14 and also submit my unfit and fit certificate at the time ofjoining and & my condition was too critical that I could not inform my office / physically or by post.
Therefore, I request you kindly think about my matter with your judicious mind and exonerate me from the charges and I also promise you that it will not happen in future."
(iii). Appointment of 1.0 vide order dated 07.04.2014 (Annexure A-3), which mentions about his reply dated 05.04.2014, whereas the reply was of 07.04.2014 (as in supra). Therefore, it seems that without waiting for his reply, the 10 was appointed, which is bad.
(iv) Dates of Inquiry:
The enquiry was conducted on 06.06.2014, 25.06.2014 and 10.07.2014.
The applicant did not attend hearing on first two dates and informed that he was attending to his sick wife in Bihar. The enquiry was closed on 10.07.2014, without asking him to furnish doctor's certificate in support of his reply to charge sheet.
(v) The Enquiry Report dated 06.08.2014 (Annexure A-4) where the Enquiry Officer's finding is as under:
"After going through the case and after checking the records and Considering the statement of the witnesses it is established that Sri Prasad made himself unauthorized absent for self/wife medical treatment under private medical practitioner. Also he fails to give any prior intimation to office in time regarding his absence. The period of unauthorized absent and cause for the year 2010-11, 2011-12, 2012-13 & 2013-14 is mentioned in a separate copy. He joined his duty on 07.03.2014 with PMC but from 25.05.2014 till date he is unauthorized absent.
Hence, E.O. is in the opinion that Sri Prasad is guilty of making himself unauthorized absent."
It is establishes that the applicant was absent due to medical grounds.
(vi) Applicant's reply dated 01.09.2014 (Annexure A-5) to the lO's report, O.A.350/1123/2017 7 whichjis quoted hereunder:
"Most humbly and respectfully I beg to submit that I like to ■ represent against the allegation framed against me. I am regretful for keeping myself abstained from duty for such a long period, : though myself, and my wife were extremely ill and were under the observations of a medical practitioner.
Sir, l was appointed on 14.06.1999 and still twenty two years of service is (eft before my superannuation. I have three children, two of them are minor. I am the only earning member of my family and their daily supper entirely depends on me.
Hence, I pray your honour to forgive me this time, and give me on opportunity to rectify myself."
(vii)The penalty order dated 22.09.2014 (Annexure A-6), is reproduced herein below:
Speaking order Ref. Charge sheet SF-5 No. TF/E/17/26(Major), dated 24.03.2014 The Owrjed offidjl (CO.) was Issued majtv penalty charge sheet SF-S No. TF/£/l7/26fMalwl. dated 24.012014 far keeping Nmstf unatthortted tbsem fom duty in vartan spdh during 2010 to KUydctaDs are furnished below-
from To tenarks
21.082010 28.012011 Resumed on 29.012011 with PMC
06.03.2011 222)3.2011 Resumed on OS.OSJOU with PMC
14.03.2011 15.094011 Resumed on 16.09.2011 with PMC and SMI was Issued. vtde TF/E/17/5 dated
29.01.11.
.20.124011 11.01.2012 Resumed on 12.0U0U with PMC
23464012 04.074012 Resomed on 17474012 with PMC
19.084012 05.104012 Renrrr.ed on 0640.2012 with PMC and SMI was issued, Vide TF/E/1V33 dated
26.10.03 Sets privflege pm withheld.
09.124013 28.044013 Resumed on 29444013 wtth PU
20.064013 18.094013 Resumed on 19494313 with PMC and SMl was issued, vide ^1/17/47 dated'
14494013.03 Sets privilege pass withheld.
08.12.2013 06.034014 Resumed on 07434014 with PMC and Sf-5 was Issued.
in reply to under reference charge sheet, you have admitted that you were ID and couid not attend the office vide letter No. N3 dated 05.044024.
Thereafter, an enquiry was ordered and enquiry officer las submitted his report vide report No. Nil dated 06484014. •' i.'.' Copy of tntjtdry repot was handed over to you vide letter fio,;Tfjfljfi7/l5 dated 0748.2014 and you have stated ' ^that you and your wife were cxtremefy ID and were under the ohservaWi d a medlat pcictSdww vide letter Uo. tfll dated.' y 01034014, But, you havt neither mentioned your Qness and name and addrdss of medical practitioner, fwthor, yoa have •. n submitted any documentary evidence Oka doctor-prescriptions, pathological test reports etc. tn light of above, you have *, failed to establish yout points.
.» Considering, the facts ol the case, ennuiry report and your representations during the course of DA proceedings, i am j| of _the opinion that you have repetitrvely kept yourself unauthoriied absent from duty and two times SMI was also Issued to ;yoii:and you have not improve upon yourself, from above it appears that you are habitual in keeping yourself unauthorized Vtkehi from n fifty:! uuwmotueri «1 date ami so you have vtoUted ruH"3' ' (3} wd 3 (Di) of the Railway Services (Conduct) Rules, 1S66. ; m ; • . ; ... ' Therefore, I order your removal from service with Immediate effetf with SOM of your permissible pension, gratuity tand other'allowances admissible to you.
fee - \r "If you itdsh make an appeal against the above penalty, yov can do so within a period of 45 days to WE/EMU/HV/H. p^BeSo^ so you should keep in view the provision of the rule 21 of Railway Servant (conduct) Rules 1968 whl s enclosed • •m. mjK ms • (aee/trs/cs/hWh) •A 7 V
8 O.A.350/1123/2017 It is observed that the Disc. Authority has taken into account the r' past-absence for which the applicant stood already punished as evident from the order itself.
(viii) The Revising Authority's order dated 21.09.2015 (Annexure A-8), which is extracted hereunder:
"Re: Your revision petition dated 27.5.15 against P/ l^otice No. TP/E/17/26 (Major) dated 22.9.14 (Removed from service w.e.f. 22.9.14) (On appeal regretted it by DEE/EMU/CS/HWH).
I am not satisfied with the reason cited by you in your Revision Petition. You have remained unauthorized absent for long spells several times. In the past you were taken up under DAR for absentism but no improvement is seen. The assurance given by you that you will perform if given chance can not be accepted considering your track record in past. The DA while passing the order has already granted pension and other benefits due to you. i, therefore, do not find any merit in your Revision Petition and dispose the same without change in orders passed by DA and upheld by Appellate Authority.
-Sd-
21.09.15 (A.KJain) Revising Authority & Sr. DM. Elect. Engineer/ EMU E.RIy./HWH"
6. The legal lacunae in the conduct of proceedings as noted from records;
(i) The Enquiry Officer was appointed even before his reply to the charge sheet reached the authorities, which is unlawful.
(ii) The applicant was to be charge sheeted for unauthorised absence during 08.12.2013 - 28.02.2014, i.e for a little less than 3 months, whereas the Disciplinary Authority while framing charges and imposing a gravest penalty of removal has taken into account all of the previous absence periods of which the 0 9 O.A.350/1123/2017 applicant stood already vindicated with imposition of penalty or with Y regularization of absence with a PMC in the following manner:
& (a) 21.08.2010 - 04.07.2012; in different spells when his absence was regularised with a PMC and Fit Certificate and he was allowed to join his duty.
(b) . 19.08.2012 - 05.10.2012; for which SF 11 (minor penalty) was issued and he stood already penalised.
(c) 09.12.2013 - 28.04.2013; when he was allowed to resume on PMC (dates wrongly mentioned).
(d) ; 20.06.2013 - 18.09.2013; for which SF 11 (minor penalty) was issued and he stood already penalised.
Therefore, it is evident that the applicant was chargesheeted and penalised not for absence of three months (from 08.12.2013 - 28.02.2014) but because he was a habitual absentee from 2010 whereas such previous leave stood already regularised in accordance with law when he was penalised and stood vindicated.
It is trite, axiomatic and settled principle that a party shall not be vexed twice over the !same cause of action (nemo debet bis vexari).
The Disciplinary Authority punished him with removal with 50% cut in pension, for three months' absence taking into account his previous spells of absence for which the applicant stood already penalised or vindicated, which is highly unlawful.
(iii) The penalty of removal with 50% cut in pension and gratuity, when the extant Railway Rules allow 2/3rd of pension and gratuity in cases of removal for unauthorised absence, is grossly disproportionate. / 10 O.A.350/1123/2017
(iv) That, authorities during enquiry have failed to ascertain the truth in the w :y claim of the applicant about his critical illness during the leave period. They have r if also failed to conclude that the absence was wilful.
7. Coming to the decisions cited by the respondents in, B. Govinda Swamy (supra) that "habitual absenteeism is a gross viofation of discipline,, and "even in the absence of any statutory rule, still it is open to the disciplinary authority to take into consideration the past record of service for inflicting the penalty, which only adds weightage to his decision", it is noted that the Hon'ble Court has not propounded that Disciplinary Authority shall take into account all previous period of absence even for which the delinquent stood already penalised, rather it has said "if the charge entails a major penalty independently, even without reference to the past record, the Disciplinary Authority can always impose such penalty, commensurate with the misconduct for which the subsequent disciplinary proceedings are taken"ar\d that the penalty related to "gross habitual absenteeism in a disciplined force". The ratio has, therefore, no application to the present facts to justify gravest form of penalty on the basis of past misconduct.
8. We are, however, fortified in our views that the absence has to be wilful, in view of the decision of Hon'ble Apex Court in Krushnakant B. Parmar Vs Union of India & Anr., {2012) 3 SCC 178, in which it has been held that "if the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful".
In Radheyshyam Tanwar Vs. Union of India, (2003) 2 AT 44, dismissal order of 3rd July 1987 was challenged before the Tribunal, Tribunal allowed the <? 11 O.A.350/1123/2017 ¥ • application. The Tribunal heavily relied on the decision of Punjab & Haryana High ■l-sy j/ J Court, Bafwant Singh Vs. State of Haryana, (1999)2 ATJ113, which laid down the / proposition that jf an employee was under treatment during the period of absence, such absence could not be said to be gravest act of misconduct.
In Dulal Chandra Sharma Vs. State of Mizoram (2003) 1 ATJ 404, where the mm $| employee was a T.B. patient and was absent without notice, which resulted in his dismissal from service on the allegations of unauthorized absence, the Gauhati High Court "quashed the dismissal order branding it as unconscionable".
Hon'ble Apex Court in the case of Union of India Vs. B.Dev, 1999 SCC (L&S) 57, has observed that unauthorized absence for unforeseen reasons, if satisfactorily explained, may be lightly viewed as fit for minor penalty. However, where facts and circumstances indicate deliberate preparation for unauthorized absence by an employee, which was materialized with conscious and deliberate action to disobey orders for resumption of duty, extreme punishment of withholding full pension, even after retirement, was held to have been justly awarded.
!n the matter of absenteeism, thus, the basic principle that has been followed by the Courts or the Tribunals is that it was a minor misconduct and required to be dealt with accordingly. Unless there is an element of wilful insubordination or major misconduct associated with unauthorized absence. mere unauthorized absence may not be equated with moral turpitude and a penalty of dismissal would per se be disproportionate.
A Full Bench of CAT in K.LGulati Vs. Union of India (Bahri Bros/ Full Bench Judgments, Voi.iii, Page 367) held:
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K 12 O.A.350/1123/2017
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: when there is no allegation of misconduct involving moral turpitude or any charge of corruption or of suspected doubtful integrity on the port of the applicant the quantum of punishment of removal from service appears to be wholly disproportionate."
9. Accordingly, in view of the discussions made above, we quash the charge sheet as well as the penalty order with liberty to the respondents to act in accordance with law.
10. O.A. thus stands allowed. No costs.
(Dr. Nandita Chatterjee) (Bidisha Banerjee)
Member (A) Member (J)
RK